A Labor politician told me today that a recount in South Australia would take the form of a "special count" in which only Bob Day's votes would be redistributed. That does not entirely make sense. I would expect a full recount for all 12 senators. Does anyone have any more info on this?

http://www.aec.gov.au/

Topic of public interestSenate vacancy South AustraliaOn 5 April 2017, the High Court determined that a special count be conducted to elect a new representative to the Senate from South Australia in order to fill a vacancy created by the disqualification of Mr Bob Day.

The AEC notes that the decision requires further directions by a Justice of the High Court. Upon receiving these directions the AEC will conduct the special count.

This is a list of people who have been declared to have been elected or appointed to the Australian Senate that the High Court, sitting as the Court of Disputed Returns, has subsequently declared to be void. Some of these have actually sat in the Senate and participated in proceedings however the High Court has held that their presence did not invalidate the proceedings of the Senate.[4]

https://en.wikipedia.org/wiki/Rod_Culleton

On 3 February 2017, the High Court determined the Senate reference, unanimously finding that Culleton had been ineligible for election to the Senate. At the time of the 2016 election he was subject to being sentenced to imprisonment for up to two years, which under Constitution section 44(ii) rendered him ineligible for election. This had not been affected by the subsequent annulment of the finding of guilt; the annulment had operated only from the time of the annulment. The vacancy should be filled by a special count of the ballot papers. Any directions necessary to give effect to the conduct of the special count should be made by a single Justice. However, the Court anticipated that a simple recount, as if Culleton had not been a candidate, would make the votes cast for him (so far as they were "above the line", which was 96% of them) would flow through to the next One Nation candidate.

https://en.wikipedia.org/wiki/Peter_Georgiou

A consequence of this ruling was that the ballots underwent a special count discounting Culleton's position on the paper, and Georgiou was elected in his place.

http://www.austlii.edu.au/au/other/HCATrans/2017/51.html

On 3 February 2017, this Court answered questions referred to it as the Court of Disputed Returns by the President of the Senate. The answer to question (a) was to the effect that there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned. It was further ordered that the vacancy should be filled by a special count of the ballot papers and any directions necessary to give effect to the conduct of the special count should be made by a single Justice. On 2 March 2017, Justice Keane made further orders. The special count has been undertaken.

A half-Senate election for the election of six Senators occurred in Western Australia on 5 April 2014.[1] Preferences were distributed on 29 April 2014.[2][3] The outcome was 3 Liberal, 1 Labor, 1 Green and 1 Palmer United Party. Compared to the 2013 result, the Sport party's Wayne Dropulich was replaced by Zhenya Wang of the Palmer United Party.The election was called after the result of the 2013 Australian federal election for the seats was voided by the High Court of Australia, sitting as the Court of Disputed Returns, on 20 February 2014. The election came about as a result of 1,375 ballot papers being lost during an official recount in November 2013. The High Court ruled that because the number of lost ballots far exceeded the margin for the two remaining Senate seats, the only acceptable remedy was to throw out the results and hold a fresh election. This decision set in motion the process of a special election.[4][5]The election is unprecedented in Australian federal politics. An election was held in South Australia in 1907 for the election of one senator under a previous electoral system. Half-Senate elections without a corresponding Australian House of Representatives election have occurred several times due to effluxion of time, the last one having been held in 1970.

Statement from the Australian Electoral Commission: AEC to conduct special count for WA Senate

http://www.aec.gov.au/media/media-releases/2017/03-02.htm

The AEC will conduct a special count in Perth on Tuesday, 7 March 2017 to identify which candidate is entitled to be elected to the Senate from Western Australia, to the place left vacant by the disqualification of Mr Rodney Culleton by the High Court decision of 3 February.

This follows the provision of directions today by His Honour Justice Keane of the High Court specifying how the special count of votes will be conducted.

The special count will not require the manual handling of any Senate ballot papers, as the AEC will use the voter preference data already taken from the ballot papers of votes cast at the 2016 Western Australian Senate election to complete the special count.

The special count will involve voter preferences for the now disqualified candidate Mr Rodney Culleton being disregarded, with these voter preferences now to be counted to the next preferred candidate recorded on each ballot paper, with subsequent preferences to be treated as altered accordingly. Once this is completed, a distribution of preferences will then occur.

Under the Commonwealth Electoral Act 1918 candidates who contest federal elections cannot be present to observe the process. Candidates are, however, able to appoint a scrutineer to observe the process on their behalf.

Media or other members of the public will not be permitted to observe the special count.

Once the special count is completed, the Australian Electoral Officer for Western Australia will provide the result to the High Court of Australia for its consideration. Accordingly, the AEC will be issuing no public announcement of the result of the special count while this matter is before the Court.

BackgroundOn 3 February 2017, the High Court of Australia sitting as the Court of Disputed Returns determined that Mr Rodney Culleton was disqualified from being elected at the 2016 Senate election for Western Australia due to the operation of section 44(ii) of the Constitution. The Court has ordered that the vacancy created by Mr Culleton's disqualification should be filled by a special count of the votes cast at the 2016 election with directions necessary to give effect to that special count to be made by a single Justice.

Hold on, the Constitution states that in the event of vacancies in the Senate, the successor must be a member of the same political party, so what's this about redistributing preferences to other parties?

Bob Day's seat is constitutionally required to go to a Family First member.

I refer you to Section 15, paragraph 2 of the Australian Constitution:

"Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

Where:

(a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and

(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist);

he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.

The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General."

OK. In this case, the court has determined that the Senator was not legitimately elected in the first place. It is the outcome of the election that has been called into question. It is not merely a matter of a Senator retiring or similar.

OK. In this case, the court has determined that the Senator was not legitimately elected in the first place. It is the outcome of the election that has been called into question. It is not merely a matter of a Senator retiring or similar.

Ok, but isn't it a matter of the political party? If FF won the seat, it doesn't matter who the person was, unless people were voting for Bob Day because he was Bob Day. I suppose it's hard to tell.

Ultimately, the voting system to be changed to open-list proportional representation where the elector chooses one person; if that person gets 20% of the vote within that party then they are moved up to the top of the list. It would simplify the voting process and remove the whole preference dealing issue.

They will most likely still win it, if their other candidate gets the preferences.

Not sure what exactly you are proposing. Most people have enough difficulty figuring out how to preference parties. They are not going to take enough interest to order candidates within parties, though both options are currently open to them.

The parties could always use internally democratic mechanisms to determine candidate order.

They will most likely still win it, if their other candidate gets the preferences.

Not sure what exactly you are proposing. Most people have enough difficulty figuring out how to preference parties. They are not going to take enough interest to order candidates within parties, though both options are currently open to them.

The parties could always use internally democratic mechanisms to determine candidate order.

The system is called 'open-list proportional representation'. Electors won't have to order candidates. They simply mark which person in the respective political party they want to vote for; they mark ONE person. They can just mark the top name, but the votes go to the whole party, but the elector can choose a person at the bottom of the list if they choose; and if that person gets 20% more of the vote then he/she is the first candidate on the list, etc.

Whilst the parties will still determine the order, this at least gives electors a choice to determine a specific candidate within the party list.

A Labor politician told me today that a recount in South Australia would take the form of a "special count" in which only Bob Day's votes would be redistributed. That does not entirely make sense. I would expect a full recount for all 12 senators. Does anyone have any more info on this?

I believe the high court has yet to decide whether or not Family First will still be eligible for the recount - but its widely tipped that they will be, and the Kenyan FF lady will take the seat.

There's been quite a lot about the whys and hows of this recount on the news, so I'm pretty sure you'll find something useful with a bit of googling. Antony Green has written an article about it on his blog.

As of yesterday I cannot find any detail on this recount or a similar one in WA from earlier in the year. For this one they are still waiting on 'specific orders' from a judge on how the recount is to be done. They key question I have no answer for is, are all 12 senators up for re-election, or do they merely continue the count from the point at which Day was elected?

Any idea how to get a copy of the schedule of directions mentioned here?

http://www.austlii.edu.au/au/other/HCATrans/2017/

http://www.austlii.edu.au/au/other/HCATrans/2017/51.html

On 2 March this year, Justice Keane gave directions for the Acting Australian Electoral Officer for the State of Western Australia to cause to be undertaken a special count in accordance with the schedule of directions appended to the order. The affidavit of Mr David Lang, filed on 7 March, deposes that the special count was carried out on that day in accordance with the directions given. Mr Lang reports that Mr Peter Georgiou would be placed 11th of the 12 candidates elected.

Having read the affidavit of Mr Lang, we are satisfied that it is appropriate that the Court should now make an order in terms of the declaration sought. It is apparent that no place other than that for which Mr Culleton was returned could be affected by the order sought. Accordingly, we declare that Panagiotis Georgiou is duly elected as a senator for the State of Western Australia for the place for which Rodney Norman Culleton was returned.

http://www.austlii.edu.au/au/other/HCATrans/2017/45.html - March 2

In Re Culleton (No 2), the Full Court went on to order that the vacancy in the representation of Western Australia in the Senate for the place for which Mr Culleton was returned should be filled by a special count of the ballot papers: see Re Culleton (No 2) at [45] and [68]. All members of the Full Court in this case held that the votes cast in favour of the party of which he was an endorsed candidate should be counted in favour of the next candidate on that list, at least so far as votes above the line for Pauline Hansonís One Nation party are concerned: see Re Culleton (No 2) at [44] and [67]. Accordingly, consistently with that view and consistently with the approach taken by this Court in In re Wood [1988] HCA 22; (1988) 167 CLR 145, 165 to 166, votes indicated for Mr Culleton should be counted to the candidate next in order of the voterís preference, and the numbers indicating subsequent preferences should be treated as altered accordingly.

The re-count is done using a provisions designed to deal with deceased candidates.

The original tally of formal votes by candidate and the determined quota are re-used.

An additional step is undertaken at the start of the count. All of Mr Culletonís votes are re-examined and distributed to other candidates according to the next preference on the ballot papers. For the rest of the count, any preference that would have reached Mr Culleton instead continues on to the next available preference.

After the extra step, the count proceeds as normal, declaring elected candidates, distributing surpluses, then later excluding candidates and distributing preferences. 12 Senators are elected in this count. In all re-counts of this type conducted to date, the only change in the elected Senators concerned the new Senator elected in place of the excluded candidate.

So in short, the re-count is for 12 Senators but only the disqualified Senator is replaced.

The full distribution of preferences for the special re-count can be found here

So, there is a possibility of a change in the order of elected Senators, meaning a possible change in who gets the 3 and 6 year terms, depending on how the Senate handles it. There is even a possibility of other Senators losing their seat as a result.